Cases and authorities

CRIMINAL LAW – sentencing – manslaughter – juvenile offender – whether there were circumstances falling within the provisions of s 19(4)(b) and/or (c) Children (Criminal Proceedings) Act 1987 which would warrant an order that the offender should remain in juvenile detention – evidence furnished by Juvenile Justice supportive of finding of special circumstances – offender had special education and therapeutic needs – desirable for order to be made under s 19 – order made that offender serve his non-parole period as a juvenile offender until he turns 21

SUCCESSION – family provision – application by former son-in-law of testator SUCCESSION – family provision – costs – unsuccessful plaintiff – appropriate order EQUITY – constructive trust – need for clear and unequivocal representations – need for detrimental reliance COSTS – costs of unsuccessful plaintiff – appropriate order

COSTS – indemnity costs – Calderbank offer not accepted by unsuccessful plaintiffs – whether unreasonable of plaintiffs to not accept offer

CONTRACT – formation – whether concluded agreement reached between building company and business ventures

[TRUSTS] – whether unit holder in private trading trust entitled as of right to have access to Register of Unit Holders – whether entitlement subject to trustee’s discretion – nature of unit holder’s interest under trust deed – confidentiality of other unit holders’ personal information

CRIMINAL LAW – sentencing – murder – aggravating factors – prior criminal convictions including a serious personal violence offence –offence part of a planned criminal activity – offender on conditional liberty at time of offence – offence occurred at the home of the victim – mitigating factors – offender has demonstrated remorse – offender has assisted in the administration of justice – serious criminality

CRIMINAL LAW - application for inquiry into convictions - Applicant convicted of seven counts of murder and detaining for advantage - appeal dismissed by Court of Criminal Appeal and special leave to appeal refused by High Court of Australia - five unsuccessful applications for inquiry into convictions - matters raised by Applicant previously dealt with on earlier applications - special facts or special circumstances not demonstrated - application refused under s.79(3) Crimes (Appeal and Review) Act 2001

CRIMINAL LAW – sentence – manslaughter – plea of guilty – victim killed in melee between members of rival motor cycle clubs at airport – offender part of a joint criminal enterprise to commit an unlawful and dangerous act – offence objectively serious – favourable subjective case – commencement date of sentence should be backdated.

CONTRACT – caretaker agreement made under the Strata Schemes Management Act 1996, Part 4A – caretaker appointed in 2004 to provide caretaking services to two strata schemes and one additional stratum lot of a commercial/residential building complex divided into 3 parts – the caretaker, the two owners corporations and the owner of the stratum lot are all parties to the caretaker agreement – one of the two owners corporations alleged breaches of the caretaker agreement and in July 2012 unilaterally acted to terminate the caretaker agreement – whether caretaker agreement binds owners corporation that did not formally execute it – whether parties intended contractual termination provision to exclude common law rights of termination – whether the caretaker was in “serious persistent and continuing” breach of the caretaker agreement, entitling the owners corporation to give a notice of termination thereunder – whether the owners corporation can act unilaterally to terminate the caretaker agreement for breach – whether the owners corporation has complied with the procedural requirements to entitle it to termination – whether agreement still on foot following repudiation – whether agreement may be specifically performed following repudiation – following repudiation whether innocent party may continue to perform contract and claim the whole of the promised contractual benefit – co-operation limitation – what damages flow from any alleged breach. EVIDENCE – Surveillance Devices Act 2007 (NSW), s 7 – admissibility of evidence obtained by use of listening device – implied consent to listening device being used in circumstances – use of listening device reasonably necessary for protection of interests EQUITY – fiduciary duty – developer causes an owners corporation to be bound by a caretaker agreement in February 2004 – developer establishes the owners corporation in April 2004 – whether developer owes a fiduciary duty as a promoter to the owners corporation, to be established – what is the relevant content of any such fiduciary duty – whether any fiduciary duty owed to the owners corporation was breached, when the terms of the owners corporation became bound to the caretaker agreement – whether the owners corporation affirmed the caretaker agreement in October 2004 – whether the owners corporation is now barred by delay from being granted relief setting aside the caretaker agreement.

EQUITY – tracing part of invalid gift procured by unconscionable conduct into property owned by defendant – part of gift used to repay mortgage over property. COSTS – Calderbank offer – portion of costs payable on indemnity basis.

PROCEDURE – amendment of pleadings – application to file amended Cross-Claim – amended pleading introduces new claims and reinstates claims formerly abandoned – no explanation for delay or for having previously abandoned claims – admissions in pleadings – application to withdraw – no explanation for making of admissions nor of reasons for seeking to withdraw admissions – need for explanation – applications refused - application to strike out defences – no reasonable cause of action disclosed GUARANTEE AND INDEMNITY – rights of surety – against creditor – claim by creditor against guarantor for shortfall after sale of property – whether provisions of guarantee require payment by guarantor before claim can be made against creditor – duty under s 420A Corporations Act 2001 – whether provides a remedy to guarantor

PROCEDURE – Vexatious Proceedings Act 2008 – application for leave to institute proceedings – supporting affidavit not compliant – no draft pleading – proceedings vexatious – no prima facie ground for proceedings – applicant subject of sequestration order under Bankruptcy Act - applicant not entitled to commence proceedings without consent of Trustee in bankruptcy - application dismissed

PRACTICE – Summary disposal – Statement of claim stuck out – Case management – Litigant in person

JOINT TENANCIES – plaintiff and defendant hold property as joint tenants – application by plaintiff for an interlocutory injunction to restrain the defendant from severing the joint tenancy – claim by plaintiff that the defendant agreed not to sever the joint tenancy or is estopped from severing the joint tenancy – no evidence of any agreement – no evidence of detrimental reliance by the plaintiff – held, dismissing the application, that there was no serious question to be tried

VOLUNTARY ASSOCIATIONS – plaintiff challenges the validity of a purported decision of the defendant, a company incorporated by guarantee, to suspend the plaintiff’s membership – plaintiff claims that decision was affected by actual bias – application by plaintiff for interlocutory mandatory injunctions requiring that she be reinstated as a member pending final determination of the dispute – whether balance of convenience favours granting mandatory injunctions – whether there is a justiciable dispute where the defendant’s decision did not affect the plaintiff’s property interests or livelihood – held that: (1) the effect of the decision on the plaintiff’s reputation may give rise to a justiciable issue; (2) there is a serious question to be tried as to the invalidity of the decision because actual bias on the part of any decision-makers may invalidate the decision; and (3) the plaintiff is entitled to mandatory injunctions reinstating her membership subject to conditions

PROCEDURE – costs – two motions - gross costs order not appropriate – indemnity costs order made in relation to assessor’s certificate motion – usual costs order in relation to review panel’s certificate motion – indemnity costs order in relation to notice to produce PROCEDURE – judgments and orders – corrections to judgment

COSTS – Extension of limitation period application – s 60G Limitations Act 1969 - Whether departure from UCPR Rule 42.1 (General rule that costs follow the event) warranted where applicant successful in obtaining an order extending a limitation period – Whether the applicant on an extension of limitation period application is required to pay costs regardless of outcome – Whether applicant’s fault is relevant - Necessary to consider whether the opposition of the respondents to the application was unreasonable - Costs in the cause ordered – PROCEDURE – civil – application to extend limitation period –s 60G Limitation Act 1969 – appropriate costs order

CIVIL PROCEDURE – Costs assessment – Scheme for costs assessment in Legal Profession Act 2004 – Determination of cost assessor referred to Review Panel –Certificate of Determination of Costs issued by costs assessor and filed in court – whether filing of Certificate impermissible while review taking place – whether filing of Certificate while review taking place amounted to an illegality or procedural irregularity – whether filing of certificate should be set aside. STATUTORY INTERPRETATION – Legal Profession Act 2004 – Effect on Certificate filed under s 368(5) of referral to Review Panel under Subdivision 5 – Relationship between s 377(1) and filing of certificate under s 368(5) – Whether s 377(1) prohibits or qualifies the filing of a certificate under s 368(5). CONSTITUTIONAL LAW – Principle in Kable v DPP – whether costs assessment scheme provided for in s 368(5) Legal Profession Act 2004 compromises institutional integrity of Chapter III Courts – whether costs assessment scheme incompatible with exercise by Supreme Court of New South Wales of federal judicial power pursuant to Ch III Constitution – Constitutional validity of s 368(5) Legal Profession Act – whether s 368(5) a valid legislative enactment of New South Wales Parliament.

CONTRACT - construction - whether deed granted an equitable charge and mortgage over property - relevance of that intention being expressed primarily in the recitals rather than the provisions of the deed - clear intention that recitals were intended to have present effect EQUITY - equitable charge - whether a charge to secure payment of a debt is a charge for the purposes of the Real Property Act - where agreement in any case expressly stated that an equitable mortgage would also be created - repayment - whether interest owing – registration of mortgage - whether appropriate to make order for specific performance that defendant execute mortgage in registrable form - where liquidator of defendant has not been given opportunity to respond to application

CRIMINAL LAW – sentencing – assistance to authorities – appropriate discount – whether assistance exceptional – armed robbery – applicant identifies co-offenders – undertaking to give evidence against co-offenders – combined discount of 50% for assistance and early plea – no error demonstrated

CRIMINAL LAW – appeal – appeal against sentence – kidnapping committed in company – grievous bodily harm – consideration and practical effect given to s3A of the Crimes Sentencing Procedure Act 1999 by trial judge – sentences are not unreasonable or plainly unjust

WORKERS COMPENSATION – dust diseases – the respondent successfully brought a claim against the appellant relating to injury resulting from exposure to asbestos during his employment with the appellant – whether the primary judge erred in finding that the appellant breached its duty of care to the respondent – whether the primary judge erroneously assumed that a finding of breach should follow automatically from a finding of foreseeability EVIDENCE – opinion evidence – whether non-expert witness able to give evidence that material was or contained asbestos – admissible as evidence of objectively observed fact in the particular circumstances of the case – resort to ss 78 and 79 of the Evidence Act 1995 concerning opinion evidence unnecessary to support its admission EVIDENCE – evidence of practice – estimates by supervisor of periods and intensity of exposures of workers to asbestos – generality of the evidence no barrier to its admission

BAIL – show cause requirement – throwing explosive with intent to maim – young man – first time in custody – show cause requirement met – concern applicant may commit serious offence and/or endanger the safety of victims or the community – limited but indicative criminal history – bail refused

COSTS – interest on costs – party who obtains costs ordinarily entitled to order for interest also – absence of countervailing discretionary factors – costs of motion seeking order for interest – where motion brought after costs order made

CORPORATIONS – external administration – winding up – liquidator’s applications – for directions – for approval of compromise – where leave granted for creditor to bring derivative action against shareholders – where hearing of derivative action imminent – where liquidator negotiates settlement of derivative action but not all necessary parties to settlement have assented to it – where approval would sacrifice hearing at risk that there would be no settlement – where majority of creditors oppose application – application dismissed

CRIMINAL LAW – appeal – appeal against sentence – mental health and intellectual issues – substance and alcohol abuse – sentences imposed upon the applicant were not unreasonable or plainly unjust – appeal dismissed

SUCCESSION – family provision – provision for adult children – appeal against orders made under the Succession Act 2006, s 59 SUCCESSION – family provision – whether regard can be had to reasoning or motives behind testator’s bequests SUCCESSION – family provision – whether regard must be had to the claims of other beneficiaries in determining whether provision was inadequate – whether regard must be had to the claims of other beneficiaries in determining quantum of additional provision SUCCESSION – family provision – whether proper provision to an adult child extends to provision of own home SUCCESSION – appeal against findings of fact – effect of breaking up estate assets – farming business conducted as integrated operation over several properties EVIDENCE – admissibility of additional evidence on appeal – where evidence could have been led at trial – where additional evidence explained evidence given at trial – where updating evidence is available COSTS – Uniform Civil Procedure Rules 2005, r 42.15A – what constitutes an offer of compromise – where compromise is only as to costs COSTS – costs at first instance – discretion under Succession Act 2006, s 99 – additional costs considerations for family provision cases – “overall justice of the case” – where plaintiff partially successful COSTS – costs on appeal – inapplicability of Succession Act 2006, s 99 – where appellants substantially successful

ADMINISTRATIVE LAW – judicial review – appeal to District Court from Local Court conviction – application for leave to adduce fresh evidence pursuant to the Crimes (Appeal and Review) Act 2001 (NSW) – whether District Court erred in declining to make orders in relation to Magistrate’s Bench notes and emails between the applicant and his former solicitor

CORPORATIONS – personal property securities – where charge would be void against liquidator due to failure to lodge notice within requisite time period – extension of time to lodge notice – accident, inadvertence or other sufficient cause – discretion to make order – where company in administration or liquidation – reliance upon validity of charge in advancing moneys.

CRIMINAL LAW – evidence – whether CCTV footage should be excluded under s 137 Evidence Act 1995 (NSW) – whether probative value is outweighed by danger of unfair prejudice

CRIMINAL LAW – evidence – whether part of police statement should be excluded under s 137 Evidence Act 1995 (NSW) – threat to wife and children of police officer –whether probative value is outweighed by danger of unfair prejudice

[CONTEMPT] – sentencing in respect of convictions for contempt for conduct outlined in Tate v Duncan-Strelec [2014] NSWSC 1125.

[COSTS] – whether costs follow the event – identification of “success” – whether indemnity costs should be awarded

CRIMINAL LAW – unsolved missing persons investigation – suspected cold case murder – use of listening device – where device deployed in psychiatric hospital – accused recovering from acute psychosis – whether police failed to disclose relevant information in application for surveillance device warrant – discretion to exclude admissions that are unfair – whether witness an agent of the state – whether witness “elicited” admissions – where accused had not previously been interviewed or advised of his right to silence CRIMINAL LAW – admissions – whether admission induced by offer of “off the record” conversation – whether reliability adversely affected – fairness discretion

EQUITY – personal property – ownership of chattels – deed of acknowledgement of debt and assignment – mortgage – registrable charge under s 262 Corporations Act 2001 (Cth) – obligations of a mortgagee in possession

COSTS – whether reg 106 Workers Compensation Regulation 2010 applies to plaintiff’s costs – whether plaintiff should pay the costs of the successful third defendant – whether the plaintiff entitled to a Bullock or Sanderson order in respect of those costs – whether third defendant entitled to any costs on an indemnity basis – whether there should be any order for the costs of the cross claims

COSTS – practicing certificate renewal – matter settled other than as to costs – conduct of parties – whether parties acted unreasonably - no order made as to costs

Interpretation – CONTRACT – Renewal terms – whether repeated in renewed agreement – money had and received

PRACTICE AND PROCEDURE – subpoena issued by applicant for preliminary discovery – some overlap between documents sought on subpoena and documents sought on preliminary discovery – whether subpoena should be set aside as an abuse of process – no abuse of process shown – Uniform Civil Procedure Rules r 5.3 PRACTICE AND PROCEDURE – notice to produce – – non-compliance with Equity Division Practice Note 11 – defects in form of notice – notice set aside

CRIMINAL LAW – appeal – appeal against sentence –take and detain child – reckless wounding – where offender under 18 at time of offences – where offender suffers from mild intellectual disability – offender dealt with according to law - proper regard had to offender’s mental condition – sentence not manifestly excessive – no error in reference to standard non-parole period

CRIMINAL LAW – appeal against conviction – whether misdirection in summing up to jury –direction given by trial judge in response to jury question – direction given by trial judge on causation – meaning of phrase ‘significant and substantial’ employed in the answer of the trial judge to a jury question for purposes of causation – whether terms ‘significant’ and ‘substantial’ mean the same thing – meaning of terms ‘significant’ and ‘substantial’ – directions in question should be viewed in light of earlier directions in summing up and in the context of the case involving a substantial departure from the standard of care required of the offender - in context there direction did not amount to a misdirection -appeal dismissed - CRIMINAL LAW – manslaughter – criminal negligence - elements – causation – proper test for causation – direction given to jury in relation to causation

PROCEDURE – motion for appeal proceedings to be set aside for procedural irregularity, including the appellant’s failure to file submissions

COSTS – judicial review proceedings - costs sought by a respondent who submitted to the orders save as to costs – motion filed after costs order issued – respondent did not pursue the motion - applicant applied for the respondent to bear the costs of the motion –motion and application dismissed – warning about legal representatives’ duties under s 56 of the Civil Procedure Act 2005 (NSW) when applying to the Court

PRACTICE AND PROCEDURE – expedition of proceedings – preservation of position of unsecured creditors – where potential prejudice not significant – held, expedition not warranted.

Adjournment – no question of principle.

CONTRACT - termination - repudiation - contract requiring repayment of debt by instalments - where that contract governed by a master agreement - where debtor indicated inability to complete repayments - where master agreement allowed creditor to terminate if satisfied that the debtor’s financial position was unsatisfactory - whether that entitled creditor to consider financial position at large or only in relation to the debt - default notice - whether defective because it suggested a means by which the default could be remedied - withdrawal or retraction of repudiation - where debtor now asserted ability to complete repayments - probative value of that evidence where director of debtor found to be dishonest - relief granted to creditor - delivery up of motor vehicle subject of earlier agreement

PROCEDURE – civil – adjournment of matter part heard by receipt of tender documents – exceptional circumstances

EVIDENCE – EXPERT EVIDENCE – MARTIAL ARTS TRAINING – whether the accused proficient in martial arts techniques – whether expert evidence capable of establishing such proficiency – whether the evidence in the Crown case admissible as expert opinion evidence on a state of mind issue on a charge of murder – namely as proof of an intention to cause grievous bodily harm – held that the opinion evidence in question could not be relevant to a fact in issue in the proceedings – the evidence even if admissible should be excluded under s 135 or s 137 Evidence Act 1995

PROCEDURE – civil – notice of motion to have plaintiff’s statement of claim struck out – no reasonable cause of action – insufficient pleadings - indemnity costs